But if the NJT [Abbreviation for Joseph Raz's “Normal Justification Thesis”] fails therefore both for authority as accountability and, consequently, for authority as the capacity to create preemptive reasons, what then can justify differential authority relations, as in legal and political authority? The lesson to draw from the failure of the NJT, I believe, is that the only justification that can succeed is one that proceeds from within the second-person standpoint, beginning with the assumption that we all share a common basic authority to make claims and demands of one another at all, and proceeding from there to consider what differential claims to authority anyone could sensibly accept, or no one could reasonably reject on that basis. The basic premise underlying any successful justification of differential authority, in other words, is that we share a common basic authority to make claims of each other just by virtue of being persons. Or, as Rawls put the point, to be a person is to be a
"self-originating source of valid claims" (Rawls 1980: 546).28

To flesh out this idea further, recall Fried's characterization of contracts as that body of the law that governs the individual's right to dispose of his resources or entitlements to them as he sees fit. Contracts redistribute resources among the parties to them: apples for oranges, houses for money, etc. On the view Kronman takes issue with, contracts redistribute wealth or resources according to the desires of the parties, not according to any principle of distributive justice: the desires of the parties being expressed by the voluntariness of the promises they give. Kronman's point is that whether an agreement is voluntary is just the question of whether it involves objectionable advantage-taking, and that is the question of the legitimacy of securing wealth through differential patterns of capacities, skills, and resources.

One might respond that Hellman leaves open the possibility that there are other ways of offending against "the equal moral worth of persons" than through demeaning others (Hellman 2008: 31). Hence, she might agree that the former scenario clashes with the principle of equal moral worth. She might even concede that it does so to a higher degree than the latter scenario. But if so, she cannot claim to identify wrongful discrimination on the basis of which kinds of differential treatment are demeaning (Hellman 2008: 29), because she would have conceded that differential treatment may clash with the principle of equal moral worth, even if it is not demeaning.

On the other hand, the most recent representatives of the sociology of law—Pound, Cardozo, Commons, Llewellyn, and Arnold in the United States; Kantorowicz, Eugene Ehrlich and Hugo Sinzheimer in Germany; Duguit, Hauriou, Leroy, and Morin in France— were occupied mainly with sociological description of the actual state of law and the conflicts surging within its bosom between rigid law and spontaneous, living law. Their efforts have been concentrated above all (despite the wide divergence among their various conceptions) either on the description of modifications of juridical technique and the activity of tribunals with reference to major changes intervening in the social reality of law, or on a general description of the transformation of the actual system of law under various aspects, particularly under that of the growth of the jural framework of the economic society expressed in the growing role of the autonomous law of labor unions and trusts. Thus, except for some precious indications by Ehrlich, Pound, Hauriou, and Llewellyn—the distinction between systematic sociology of law and genetic legal sociology, as well as between differential jural typology of inclusive societies and that of particular groups, and moreover that between microsociology of law and the jural typology has not been clearly worked out. This has led frequently to a much too dogmatic tendency in analyses. Some legal sociologists have attributed to juridical techniques of a certain kind a too important role and have verged on identifying the technique of modern "sociological jurisprudence" or of its opponents, the "legal realists", with the fate of the sociology of law itself.